-71- B. Comments Regarding the Introductory Statement and Brief Introduction of The Five The first two paragraphs of the introductory statement in the STJ report regarding The Five do not include findings of fact but rather represent a statement of the Special Trial Judge’s understanding of respondent’s theory of the cases. A review of respondent’s posttrial briefs reveals that the Special Trial Judge misunderstood and/or misstated respondent’s position. As an initial matter, the STJ report stated that it was respondent’s contention The Five made payments “In return for Ballard’s and Lisle’s services”. This statement suggests that respondent asserted The Five were aware Ballard and Lisle were using their influence to steer business to them and The Five intended to compensate Ballard and Lisle for their actions. To the contrary, respondent’s theory regarding the manner in which the kickback scheme was carried out is articulated in respondent’s Opening Brief at 568-567, as follows: Suppose A says to B, “If I introduce you to C, and you do business with C’s company, then I want 50% of whatever money you make on the deal.” If B did business with C, and, in turn, paid A 50% of what he made, that is not a kickback. A received a finder’s fee. However, further suppose, A went to C and said, “Whatever business you give to B, I will give you a percentage of the money B gives to me.” In this situation, B may not even know about the arrangement between A and C. B may believe he is getting business from C because he does good work. Nevertheless, respondent maintains that when C gives business to B with the understanding that he will eventually receive money generated by that business from A, that is a kickback.Page: Previous 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 Next
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